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The Unrelenting Libertarian Challenge to Public Accommodations Law

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. To be sure, the language in which the controversy is expressed has changed. During Reconstruction, opponents of laws prohibiting discrimination by public accommodations argued that those laws impermissibly sought to extend equality beyond the sphere of “civil rights” to the sphere of “social rights.” By contrast, during the Civil Rights Era, and continuing to today, opponents have framed their arguments in terms of property, contract, or freedom of association, rather than in terms of civil rights and social rights. But the underlying concerns have been the same. In the Reconstruction Era, in the Civil Rights Era, and today, public accommodations laws have triggered legal controversy over the extent to which antidiscrimination principles should penetrate into spaces that had at one time been understood as “private” or “social.”

This paper begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the controversy was discussed in the earlier era in the terms of civil versus social rights, and in the later era in the terms of property, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The paper then turns to the current controversy. It begins by discussing Rand Paul’s 2010 comments questioning whether public accommodations laws are consistent with libertarian principles, as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul’s libertarian opponents disagreed with him only on pragmatic, not principled, grounds. The paper then turns to an analysis of Boy Scouts v. Dale and of recent developments — including constitutional challenges to state public accommodations laws and the ongoing religious-liberty challenges to the Affordable Care Act’s “contraception mandate” — that promise to undermine the expressive/commercial distinction that has kept Dale from threatening the core of public accommodations law.

This paper ultimately aims to show that although we no longer use the language of civil and social rights, the law of public accommodations discrimination remains preoccupied by the same sorts of questions that it once confronted using that language. Today’s controversy regarding public accommodations laws is a controversy about whether the civil rights category should cede back some of the territory it once conquered from the category of social rights.